Judge: Long Wait for Death Makes California Executions Unconstitutional

In an indictment of California's death penalty, a federal judge ruled Wednesday that decades-long delays and uncertainty about whether condemned inmates will ever be executed violate the constitution's ban on cruel or unusual punishment.

The ruling by U.S. District Judge Cormac J. Carney, an appointee of former President George W. Bush, was unprecedented and likely to further inflame the debate over the state's death penalty. Several prominent judges have excoriated California's death penalty for its dysfunction, but Carney was the first to rule the delays amounted to a constitutional violation and left the system without any legitimate purpose.

For decades, California's inmates have argued that the death penalty violates the U.S. Constitution's ban on cruel and unusual punishment, and courts have routinely dismissed the claim. But Carney focused on how the state enforces the death penalty and ordered lawyers to present written arguments on it.

California's system, "where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections -- that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death," wrote Carney, who serves in Orange County.

Carney noted that more than 900 people have been sentenced to death in California since 1978 but only 13 have been executed.

"For the rest, the dysfunctional administration of California's death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution," Carney wrote. "As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary."

Carney said the delays had created a "system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed."

Carol Steiker, a criminal law professor at Harvard Law School and an expert on the death penalty, described Carney's decision as "stunning" and "path-breaking."

"That's a ruling of tremendous breadth," she said. "We haven't seen very many rulings from the federal courts declaring a whole state's system unconstitutional. That's quite stunning."

Elisabeth Semel, a UC Berkeley law professor who directs the school's Death Penalty Clinic, described Wednesday's decision as "unprecedented in the modern death penalty in California."

"This is an issue that has been discussed in California for decades," she said. "What he did is both amass and synthesize what [this means] in the context of the 8th Amendment."

Carney issued his ruling in a decision that overturned the death sentence of Ernest Dewayne Jones, a Los Angeles man sentenced to die for the 1992 rape and murder of Julia Miller, his girlfriend's mother. The ruling applies only to his case, but will have broad significance if upheld on appeal.

Legal analysts expect Atty. Gen. Kamala D. Harris to ask the U.S. 9th Circuit Court of Appeals to review the decision. Its fate there would probably depend on which judges reviewed it. Analysts said if the ruling were upheld by the 9th Circuit, it would probably go to the Supreme Court.

"I think it has a shot in the 9th Circuit, but I don't know about the U.S. Supreme Court," said Santa Clara University law professor Gerald Uelmen, who was chairman of a state commission that concluded the system needed substantially more money to operate effectively. "It is conceivable that the U.S. Supreme Court and the 9th Circuit could say California is such an outlier -- its system is so dysfunctional, with twice the national delay -- that it cannot be sustained."

Kent Scheidegger, a death penalty proponent and legal director of the Criminal Justice Legal Foundation, said he was confident the Supreme Court would reject Carney's reasoning, noting the court had rejected similar claims for nearly 20 years.

"Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay," Scheidegger blogged. "But the retribution interest, at least, is still there. The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes."

Michael Laurence of the Habeas Corpus Resource Center, who represented Jones, welcomed the decision in a statement, saying, "There is no rational explanation, much less any moral or societal justification, for which people are ultimately executed. The execution of Mr. Jones, and the others like him whose meritorious legal claims have gone unheard for decades, serves no valid state interest."

California's death penalty system long has been plagued by delay, and several studies have faulted its effectiveness. Inmates wait years to obtain lawyers, and appeals often take decades to resolve.

Courts have prevented executions since 2006. A federal judge ruled that year that the state's three-drug lethal injection procedure violated the ban on cruel and unusual punishment but could be fixed. The state built a new execution chamber and revised the drug protocol, but a state court said the new protocol had not been properly vetted.

Gov. Jerry Brown's administration is developing a single-drug method of execution, but drug suppliers have balked at having their products used in executions.

In overturning Jones' death sentence, Carney noted that the inmate faced "complete uncertainty as to when, or even whether" he would be executed.

"For every one inmate executed by California, seven have died on Death Row, most from natural causes," Carney wrote. He said there was no reason to expect executions to resume soon, and if they did, California would have to execute more than one inmate a week for the next 14 years to kill them all. Nearly 750 inmates are now on the state's death row.

"No rational person," Carney said, "can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society."

Carney, a former UCLA star football player, was a business litigator in private practice when former Gov. Gray Davis appointed him to Orange County Superior Court. He was known for being independent and meting out tough sentences. Bush appointed Carney to the federal court in 2003. Voter registration records show Carney lists no party preference.

Former L.A. County Dist. Atty. Gil Garcetti called the ruling historic.

"It further proves that the death penalty is broken beyond repair; it is exorbitantly costly, unfair and serves no legitimate purpose whatsoever," Garcetti said. "The only solution is to replace the death penalty with life in prison without the possibility of parole."